THE HIGH COURT OF SWAZILAND
Case No. 26/95
the matter between:
FRED HLATSHWAYO Plaintiff
SICELO HLATSHWAYO Defendant
PLAINTIFF Mr. Shilubane
DEFENDANT Mr. Mlangeni
applicant in application No. 26/95 is Alfred Hlatshwayo (ALFRED). He
has, on Notice of Motion dated 12/1/95 claimed transfer of Lot No.
401 in Nhlangano Extension F.3, District Shiselweni from the
respondent, Samuel Sicelo Hlatshwayo (SAMUEL).
respondent opposes the granting of the relief claimed but has not
filed a replying affidavit.
a separate application No. 500/95 Ncane Nellie Sihlongonyane (NELLIE)
in terms of a notice of motion dated 16/3/95, approached this court
as a matter of urgency, and without citing ALFRED or giving him any
notice applied and was granted a rule nisi calling on SAMUEL to show
cause, why he should not be restrained and interdicted from selling
or otherwise alienating certain dwelling house upon Stand No. 401
Extension 3 Nhlangano, i.e. the property.
two applications have been consolidated, not withstanding that ALFRED
was not a party to the application No. 500/95 and were heard
together. The consolidation was effected by NELLIE being introduced
into application No. 26/95 as a co-respondent.
has proved that SAMUEL sold the property to him in terms of the Deed
of Sale dated 10/6/94. He has paid conveyancers fees and made
provision for payment of transfer duty and all other matters which he
was obliged to do in terms of the agreement. He has paid the deposit
and he has also established a guarantee for the balance of the
purchase price. This guarantee has now lapsed but is ready willing
and able to reinstate a guarantee. He now seeks an order which in
effect would compel SAMUEL to transfer the property to him. He also
asks for the costs on the application.
the 17/3/95 this court on the application of NELLIE was persuaded to
grant a rule nisi calling on SAMUEL to show cause why he should not
be interdicted from alienating the property.
in writing the application was clearly aware of the sale by SAMUEL to
Alfred but for some reason best known to herself, she did not give
Alfred notice of the application nor afford him an opportunity of
opposing the application. The rule has been extended from time to
time and I would assume that it had been extended until the hearing
of the matter.
also obtained an order, joining her in these proceedings, to oppose
the relief sought by the applicant, ALFRED.
respondent, Samuel has filed no affidavit and the applicant alleges
in an affidavit dated 4/4/95 that when this application first came
before the court, Samuel did not oppose the granting of the relief
sought and his attorney requested the postponement to able Samuel to
sign the transfer documents. These allegations are not denied. It
seems clear that NELLIE and SAMUEL are conniving in a defence to
frustrate the applicant's claim to transfer.
basis of the defence is untenable. NELLIE claims to be a co-owner of
the property. This proposition is belied, and incontrovertibly
by the simple fact that she is not registered as such. Any defence
therefore based on an allegation that she as a co-owner had not sold
the property must fail.
says that in or about 1991 she and Samuel entered into an oral
agreement in terms of which they would jointly purchase the property
for amount of E145,000. In support of this allegation she has
produced a letter dated 15/2/91 written to her by Samuel. I have
grave suspicions as to the authenticity of this letter and if the
matter were to have proceeded I would have expected cross-examination
to be directed to question a number of aspects surrounding the
letter. This however will not be necessary as the letter itself is
not evidence of any agreement. The letter in effect is a request from
Samuel to Nellie that she assist him financially in purchasing the
property which they intend in some way would be for the benefit of a
child of which Nellie is the mother and Samuel the father. The fact
remains however that whatever the intention of Nellie and Samuel may
have been, no effect was given thereto. Samuel alone acquired the
property and as owner had the right to deal with it. The deed of sale
in terms of which the property was acquired has not been produced but
it is hardly likely that the property would have been transferred to
Samuel alone had the purchasers been Nellie and Samuel jointly.
may be true that Nellie contributed to the purchase of the property.
That my entitle her to reclaim her contribution from Samuel and she
may even be entitled to an interdict on the proceeds of the sale to
Alfred to the extent of such contribution. She has no valid claim to
the property itself.
is no defence to the applicant's claim and no basis for Nellie
preventing the transfer of the property. I therefore order:
respondent SAMUEL SICELO HLATSHWAYO shall forthwith transfer
No. 401 Extension 3 Nhlangano Shiselweni District to the applicant.
the said respondent fail when called upon so to do, by the
conveyancers attending to the transaction after the guarantee
by them shall been re-established, to sign any document or perform
any act necessary to effect such transfer, the Sheriff or his lawful
deputy is hereby authorised, required and directed on behalf of the
respondent to sign all such documents and to do all such things as
may be required of the respondent in order to effect registration of
notice calling on the respondent to perform his obligations in terms
hereof may be delivered to him at the offices of his attorneys, by
handing the same to any person practising or employed there should
the conveyancers be unable to contact the respondents personally to
give such notice.
rule nisi issued on the application of NELLIE SIHLONGONYANE is
dismissed with costs.
respondents NELLIE and SAMUEL are to pay the applicant's costs
jointly and severally.